You need to keep in mind that artists, working in different artistic media, have different concerns about how potential orphan legislation can affect them. Artists, who create images, face the greatest risks in having their works exploited because images are easier to gather and sell in bulk than any other form of expression.
Below are my concerns about some of the comments made by Marybeth Peters in her statement to Congress on "The “Orphan Works” Problem and Proposed Legislation". Keep in mind that the title of Ms. Peters report to Congress--the phrase "Proposed Legislation" is right there. Maybe there currently isn't legislation to change copyright law, but it's only a matter of time when the head of the copyright office is suggesting that it's time for such legislation.
"we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user." To a lot of artists, this sounds reasonable. If an orphaned written work is published and the writer is compensated by the standard payments given for such publishing, that's not a bad deal--particularly when that work otherwise isn't generating any revenue. The same applies to a song resurrected or a lost movie being re-released. Artists and photographers have to worry about their work being collected and sold in bulk where any compensation received will be meager compared to the bulk fashion in which their artwork is being trivialized. Probably the most frustrating aspect of “reasonable compensation” is that it is basically a contract being made after the fact where the terms of “reasonable compensation” will be defined by the infringer.
In describing the concerns of photography works, Marybeth states, "They do not always have metadata or watermarks. Certain categories of images are not routinely managed or licensed. These are genuine problems, but they are in fact the very essence of the orphan works problem." Is it just me or is anybody else tired of hearing that there is a problem that needs to be legally fixed? It is only a problem for people who want to use copyrighted works that they have no rights to use. To the copyright owner, it isn't a problem. As a copyright owner, my concern is that the proposed changes will define my work as orphaned because some jerk cropped my copyright notice off my artwork.
"We are confident that the marketplace offers, and will continue to offer, an array of databases and search technologies that will result in more choices for the copyright owner and more aids for the prospective user. …an orphan works amendment would provide additional incentives for copyright owners and database companies to work together." This has the ominous overtone that artists will have an incentive to pay a database company to have their works incorporated into the database, or risk having their works being considered orphaned. Photographers will be hit hardest with this because of the volume of work that photographers create. Any law, that penalizes one form of creative expression more than another, is going to be a poor law.
In Peters' conclusion, "In closing, we note that millions of orphan works are precluded from productive use by authors, publishers, filmmakers, archives, museums, local historical societies and other users, despite the fact that the copyright owners may never be found." Maybe the "authors, publishers, filmmakers" that want to use free orphaned works can hire some starving artist to create new works for productive use. My preference is to see existing Fair Use guidelines address the more legitimate concerns of historical usage of old artistic works as part of a greater overall work to document and preserve this country's history. The proposals, in Marybeth Peters' report to Congress, go beyond those haughty goals. Richard Gagnon
no subject
Below are my concerns about some of the comments made by Marybeth Peters in her statement to Congress on "The “Orphan Works” Problem and Proposed Legislation". Keep in mind that the title of Ms. Peters report to Congress--the phrase "Proposed Legislation" is right there. Maybe there currently isn't legislation to change copyright law, but it's only a matter of time when the head of the copyright office is suggesting that it's time for such legislation.
"we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user."
To a lot of artists, this sounds reasonable. If an orphaned written work is published and the writer is compensated by the standard payments given for such publishing, that's not a bad deal--particularly when that work otherwise isn't generating any revenue. The same applies to a song resurrected or a lost movie being re-released. Artists and photographers have to worry about their work being collected and sold in bulk where any compensation received will be meager compared to the bulk fashion in which their artwork is being trivialized. Probably the most frustrating aspect of “reasonable compensation” is that it is basically a contract being made after the fact where the terms of “reasonable compensation” will be defined by the infringer.
In describing the concerns of photography works, Marybeth states, "They do not always have metadata or watermarks. Certain categories of images are not routinely managed or licensed. These are genuine problems, but they are in fact the very essence of the orphan works problem."
Is it just me or is anybody else tired of hearing that there is a problem that needs to be legally fixed? It is only a problem for people who want to use copyrighted works that they have no rights to use. To the copyright owner, it isn't a problem. As a copyright owner, my concern is that the proposed changes will define my work as orphaned because some jerk cropped my copyright notice off my artwork.
"We are confident that the marketplace offers, and will continue to offer, an array of databases and search technologies that will result in more choices for the copyright owner and more aids for the prospective user. …an orphan works amendment would provide additional incentives for copyright owners and database companies to work together."
This has the ominous overtone that artists will have an incentive to pay a database company to have their works incorporated into the database, or risk having their works being considered orphaned. Photographers will be hit hardest with this because of the volume of work that photographers create. Any law, that penalizes one form of creative expression more than another, is going to be a poor law.
In Peters' conclusion, "In closing, we note that millions of orphan works are precluded from productive use by authors, publishers, filmmakers, archives, museums, local historical societies and other users, despite the fact that the copyright owners may never be found." Maybe the "authors, publishers, filmmakers" that want to use free orphaned works can hire some starving artist to create new works for productive use. My preference is to see existing Fair Use guidelines address the more legitimate concerns of historical usage of old artistic works as part of a greater overall work to document and preserve this country's history. The proposals, in Marybeth Peters' report to Congress, go beyond those haughty goals.
Richard Gagnon